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People v. Rockett

JUNE 30, 1967.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

GEORGE W. ROCKETT, APPELLANT.



Appeal from the Circuit Court of the Seventeenth Judicial Circuit of Winnebago County, Magistrate Division; the Hon. ROBERT G. COPLAN, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied and opinion modified July 27, 1967.

This is an appeal by the defendant, George W. Rockett, from a judgment finding him guilty of the unlawful use of weapons, in violation of section 24-1 of the Criminal Code (Ill Rev Stats 1965, c 38, par 24-1).

The defendant was taken into custody on September 25, 1965, for the offenses of being drunk and disorderly and possessing a concealed weapon. The next day he was admitted to bail, and on the 19th day of October, 1965, a criminal complaint was signed and sworn to by LaVerne Pickett, before a magistrate, charging the defendant with the criminal offense of unlawful use of weapons in violation of the aforesaid paragraph of the Criminal Code.

On October 22, 1965, the defendant was arraigned; entered a not guilty plea and the case was set for jury trial. On February 25, 1966, he filed a motion to dismiss the complaint alleging that the complaint was fatally defective; that it did not state an offense or set forth the nature and elements of the offense; and that the charge did not state the date and county of the offense. Subsequently, he filed a motion to dismiss the complaint and for his release from the obligations of his bail, and for discharge, in that he had not been tried within 120 days from the date he demanded a trial, as required under section 103-5 of the Criminal Code (Ill Rev Stats 1965, c 38, par 103-5). These motions were denied.

The defendant thereafter waived jury trial and the case was heard by the court. He was found guilty of the unlawful use of weapons, as charged in the complaint, and was sentenced to pay a fine of $100 and costs.

On appeal, the defendant asserts that the charge did not state an offense, the time and place or county where the alleged offense was committed, and cites sections 107-9 and 111-3 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, pars 107-9 and 111-3) as authority to sustain his contention. The complaint follows, as nearly as possible, the language of section 24-1(a) (4) of the Criminal Code (Ill Rev Stats 1965, c 38, par 24-1(a)(4)). The heading of the complaint bears the designation, "State of Illinois" and "County of Winnebago," and specifies "That on the 25th day of September 1965, in said County," the defendant, "knowingly carried concealed on or about his person, a firearm, namely: a certain Colt .38 caliber Detective special, when not on his land, or in his own abode or fixed place of business," in violation of section 24-1 of the aforesaid Code provisions.

Cases construing the Code provisions in question indicate that no further specificity is required. People v. Williams, ___ Ill.2d ___, 228 N.E.2d 501 (1967); People v. Blanchett, 33 Ill.2d 527, 532-535 incl., 212 N.E.2d 97 (1965); People v. Pride, 16 Ill.2d 82, 86, 156 N.E.2d 551 (1959). Thus, we hold that the complaint fully complied with sections 107-9 and 111-3 of the Code of Criminal Procedure.

The defendant also contends that the Constitution of the State of Illinois, and section 103-5 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, par 103-5), guarantees to him the right to a speedy trial. We agree with this general statement of principle. The point of controversy arises in this case because the record reflects only that "The defendant being arraigned in open court enters his plea of not guilty and this case is set for jury trial." Such record makes no reference to the defendant making a demand for jury trial. However, the defendant filed a motion to dismiss the complaint and for release from bail and discharge for failure to bring him to trial within 120 days, which was supported by his affidavit wherein he stated that he demanded trial when arraigned on October 22, 1965, and that he was not brought to trial within 120 days from the date of such demand.

We believe that section 103-5 of the Code of Criminal Procedure, which states that every person on bail shall be tried within 120 days from the date the defendant demands trial unless the delay is occasioned by him, requires some affirmative act on the part of the accused, either in form of a written or an oral demand for trial, as reflected in the record in order to invoke the 120-day period. Such demand must be communicated to the State, preferably by written notice, but certainly by a formal motion which is preserved in the record. The only record of any demand for trial by the defendant is found in his affidavit which supported his motion.

There was no transcript of the proceedings at the trial in the record. It consisted solely of the matters in the files and records of the clerk, which are usually designated as the common-law record. Ill Rev Stats 1965, c 110, par 74(2); Supreme Court Rule 321. The transcript of the proceedings is in lieu of the old bill of exceptions, which was formerly required to review questions not arising on the common-law record. In the light of these facts, the case of People v. Iasello, 410 Ill. 252, 102 N.E.2d 138 (1951) is quite pertinent.

In Iasello, the defendant, on review, also asserted that he had been denied a speedy trial as provided in section 18 of Division XIII of the Criminal Code (Ill Rev Stats 1949, c 38, par 748). The cause came before the Supreme Court on the common-law record with no bill of exceptions. At pages 254 and 255, the court stated:

"In cases of this nature we have repeatedly held that where a defendant makes application for discharge to the court where the indictment is pending, he must, in case of unfavorable action, preserve in the record, by bill of exceptions, the proceedings had upon such application, which then may be reviewed on writ of error. (People v. Sweeney, 409 Ill. 223; People v. Farley, 408 Ill. 194; People v. Economac, 243 Ill. 107.) There is no bill of exceptions before us in the present case and, without it, this court is left to determine the facts relating to the date of confinement from conjecture and from matters de hors the record. In order to bolster his contention, plaintiff in error has attached to the common-law record a copy of his motion for discharge, and a copy of a supporting affidavit. These, we are not at liberty to consider, for, where review is had upon the common-law record, the sole matter that may be considered by the reviewing court is error appearing on the face of the record, and matters may not be added by argument, affidavit or otherwise, to supply or expand the record. People v. Loftus, 400 Ill. 432."

Under the doctrine of Iasello, we may unfavorably consider the defendant's affidavit and argument alleging that he demanded trial at the time of the arraignment, since both the argument and affidavit are self-serving. Where no report of proceedings is included in the record on appeal, the presumption is that there was sufficient evidence to sustain the decision of the trial court. Skaggs v. Junis, 28 Ill.2d 199, 201, 202, 190 N.E.2d 731 (1963); People v. Cloutier, 64 Ill. App.2d 177, 184, 185, 212 N.E.2d 266 (1965). Also, in the absence of a report of proceedings, no issue of fact may be reviewed. People ex ...


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